HomeMy WebLinkAboutagreement10/10/03 PI11:17 FAX 8454802002
DC Co ATTORNEY Wh 002
AGREEMENT 3 -6'4& i6/ "CJ
THIS AGREEMENT, made this /7 day of )t'emig- ' , 2003, by and between the
COUNTY OF DU']:CHESS, a municipal corporation with offices at 22 Market Street,
Poughkeepsie, New York 12601 (hereinafter referred to as the "COUNTY") and REDDOT
SOLUTIONS CORP., a orporation, whose address is One Battery Park Plaza, 24th Floor, New
York, NY 10004 (hereinafter referred to as the "CONTRACTOR").
W1TiNESSETi:
WHEREAS, the County Office of Computer Information Systems desires the services of
contractor to provide web content services, and
WHEREAS, the Contractor is qualified and is willing and able to perform such services
in a timely mariner, and
WHEREAS, the funds necessary to pay for such services axe appropriated in the 2003
Adopted County Budget at Line Item No. A1680, now, therefore, it is mutually agreed by and
between tb.e parties hereto as follows:
1. SCOPE OF SERVICES. The Contractor shall perform, using standards of care
acceptable to the County and in strict compliance with all applicable federal, state and local laws,
regulations and procedures, the services sot forth in Exhibit "A" annexed hereto and made a part
of this Agreement. This contract is for the County's RFP DCP-12-03 entitled DUTCHESS
COUNTY WEB CONTENT MANAGEMENT.
If any term of the Scope of Services contradicts or creates an ambiguity with any term of
this Agreement, this Agreement shall govern.
2. TERM OF AGREEMENT. This Agreement Rhz[1 be effective September 30,
2003 and shall terminate on October 31, 2008, unless otherwise terminated as set forth herein.
The project, as described in E 5i xt A, s abbe completed by March 31, 2004.
3. P4y 4 NT. As full and complete consideration for the services so rendered, the
County shall pay a total sum not to exceed NINETY THOUSAND and 00/1.00 (S90,000.00)
DOLLARS for cost of the software, maintenance, support, training and related services as
outlined in Exhibit "B". The sum of FIFTY-FIVE THOUSAND and 00/100 ($55,000.00)
DOLLARS, representing the cost of the software aid related items, shall be paid within thirty
(30) days of delivery of same. The surn of TFitRTY-FIVE THOUSAND, atA 00/100
($35,000.00), representing the Complete On Site Services package and the first year maintenance
fee, shall be paid within thirty (30) days of completction of said services. In addition, the County
shall pay the sum of FORTY-FIVE THOUSAND TWO HUNDRED FIFTY-SIX and 31/100
($45,2.56.31) as ongoing maintenance for years two through five as outlined in Exhibit "C"
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Payment of the above consideration shall be made to the Contractor upon submission of
statements in a form satisfactory to the County. No payment shall be made prior to audit and
approval by the County.
4. INDEPENDENT CONTRACTOR STATUS. The Contractor agrees that he is an
independent contractor and that he shall not hold himself out to be an employee or officer of the
County, and that therefore, neither federal, state nor local income tax nor payroll tax of any kind
shall be withheld or paid by the County on behalf of the Contractor or his employees; that the
Contractor shall not be eligible for, and shall not be entitled to participate in, any employee
pension, health, retirement or other fringe benefit plan of the County; that the Contractor shall
have no workers' compensation or disability coverage through the County for the Contractor or
his employees, and that the Contractor shall not be entitled to make any claim against the County
for these or any other rights or privileges of an officer or employee of the County.
5. DEFENSE AND INDEMNIFICATION. The Contractor shall defend and hold
the County and its employees harmless from any and all losses, claims, liens, demands and
causes of action of any kind or character, including but not limited to, judgments, penalties,
interest, court costs, and legal fees incurred by the County on behalf of any party, in connection
with or arising directly or indirectly from this Agreement. The Contractor shall investigate,
handle, respond to, and defend any such claims, demands or suits at his sole expense, and shall
bear all other related costs and expenses even if such claims, demands or suits are groundless,
false or fraudulent. In any case in which such indemnification would violate Section 5-322.1 of
the New York General Obligations Law or any other applicable legal prohibition, the foregoing
provisions shall not be construed to indemnify the County for damage arising out of bodily
injury to persons or to property caused by or resulting from the sole negligence of Dutchess
County employees.
The term "employee" shall include all officers, their agents, servants, advisory board
members and/or volunteers serving the County.
6. INSURANCE REQUIREMENTS. At all times during the tern of this
Agreement, the Contractor shall maintain at his own cost the following insurance and shall
provide proof thereof to the County, in the form of a Certificate of Insurance, prior to
commencing work under this Agreement:
(a) Statutory Worker's Compensation coverage in compliance
with the Compensation Law of the State of New York. In
the event the statute does not require coverage of
contractor, contractor must complete NYS Workers'
Compensation Board Fomi C-105.21 and provide the
County with a properly executed copy thereof.
(b) General Liability Insurance coverage in the comprehensive
or commercial general liability form including blanket
contractual coverage for the operation of the program under
this Agreement in the amount of $1,000,000.00 per
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occurrence. This insurance shall include coverage for
bodily injury and property damage and shall be on an
occurrence form with a waiver of subrogation. The County
must be listed as additional insured.
(c) Automobile liability insurance coverage for all owned,
leased, or non -owned vehicles in the amount of
$1,000,000.00 per occurrence_ This insurance shall include
coverage for bodily injury and property damage. The
County must be listed as additional insured.
Prior to cancellation or material change in any policy, a thirty (30) day notice shall be
given to the County Attorney at the address listed below;
Dutchess County Attorney
County Office Building
22 Market Street
Poughkeepsie, New York 12601
On receipt of such notice, the County shall have the option to cancel this Agreement
without further expense or liability to the County, or to require the Contractor to replace the
cancelled insurance policy, or rectify any material change in the policy, so that the insurance
coverage required by this paragraph is maintained continuously throughout the term of this
Agreement in form and substance acceptable to the County. Failure of the Contractor to take out
or to maintain, or the taking out or the maintenance of any required insurance, shall not relieve
the Contractor from any liability under this Agreement nor shall the insurance requirements be
construed to conflict with or to limit the obligations of the Contractor concerning
indemnification.
All losses of County property shall be adjusted with and made payable directly to the
County.
All Certificates of Insurance shall be approved by the County Director of Risk
Management prior to commencement of any work under this Agreement.
All policies of insurance referred to above shall be underwritten by companies authorized
to do business in the State of New York and acceptable to the County. In addition, every policy
required above shall be primary insurance and any insurance carried by the County, its officers,
or its employees shall be excess and not contributory insurance to that provided by the
Contractor. The additional insured endorsement for the Comprehensive General Liability
insurance required above shall not contain any exclusion for bodily injury or property damage
arising from completed operations. The Contractor shall be solely responsible for any deductible
losses under each of the policies required above. Proof of additional insured coverage shall be
evidenced through an additional insured endorsement provided by the insurance carrier.
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In the event that claims in excess of these amounts are filed in connection with this
Agreement, the excess amount or any portion thereof may be withheld from payment due or to
become due the Contractor until the Contractor furnishes such additional security as is
determined necessary by the County.
7. QUALIFICATIONS OF CONTRACTOR. The Contractor specifically represents
that he and his members, officers, employees, agents, servants, consultants and subcontractors
have the experience, knowledge and character necessary to perform their particular duties under
this Agreement.
8. DECLARATION BY CONTRACTOR. Contractor declares that he has complied
with all federal, state and local laws regarding business permits, certificates and licenses that
may be required to carry out the work to be performed under this Agreement.
9. NONDISCRIMINATION. No services to be rendered pursuant to, or in
connection with, this Agreement may be refused to any person because of age, race, color, creed,
sex, national origin, disability or marital status.
Contractor shall take all affirmative steps necessary to ensure equal employment
opportunities without discrimination because of age, race, creed, color, sex, national origin,
disability or marital status and to comply with all federal, state and local civil rights laws
including, but not limited to, the Americans with Disabilities Act.
10. RETENTION OF RECORDS. The Contractor agrees to maintain and have
available for audit such records as may be required by the County, New York State or United
States governmental agencies. These records shall be available for inspection by properly
identified personnel of the above governmental agencies upon reasonable notice, and shall be
maintained for a period of six (6) years after termination of this Agreement.
11. NON -ASSIGNMENT. (a) This Agreement may not be assigned by the
Contractor nor his right, title or interest therein assigned, transferred, conveyed, sublet or
disposed of without the previous written consent of the County.
(b) An assignment of this Agreement shall not relieve the assignor of its obligations
hereunder. In the event of assignment, all the provisions hereof shall be binding upon and inure
to the benefit of the respective successors and assignees to the same extent as if each such
successor or assignee were named as a party to the Agreement.
12. TERMINATION. (a) Without cause. The County may terminate this Agreement
upon ten (10) days' prior written notice to the Contractor of its intent to terminate without cause.
(b) With cause. The County may terminate this Agreement effective immediately,
with subsequent written notice to be given to the Contractor of termination with cause.
In the event of termination with or without cause, the Contractor shall deliver to the
County any or all drawings, specifications, reports and other data, records, materials and
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equipment in his custody or control pertaining to the Agreement and the County shall pay to the
Contractor all amounts due to the time of termination in accordance with the terms of this
Agreement. Such termination shall not give rise to any cause of action against the County for
damages, loss of profits, expenses or other remuneration of any kind. Notwithstanding any
other provision of this Agreement, if, in the judgment of the County, termination is made
necessary or desirable because of the Contractor's failure to fulfill his obligations under this
Agreement, or any other fault of the Contractor, the County may withhold payment of all or any
part of moneys which otherwise may be payable to the Contractor under this Agreement and
apply such moneys toward any damages or expenses sustained by the County as a result of such
failure including, without limitation, any excess costs incurred by the County in completing the
services under this Agreement by the use or employment of other contractors or otherwise.
Notwithstanding the foregoing, the Contractor shall be liable to the County for all such damages
and expenses without limitation to any such moneys being withheld by the County, and the
failure of the County to withhold moneys from the Contractor shall not be construed as an
acknowledgement by the County that no such damages or expenses exist and shall not prevent
the County from thereafter making any claim against the Contractor therefor.
13. EXECUTORY. The Dutchess County fiscal year begins on January 15` and ends
on December 31st of any given year. Notwithstanding anything to the contrary contained herein,
it is understood and agreed that this Agreement shall be deemed executory only to the extent of
the monies available to the County for the performance of the terms hereof and that, in the event
that the Dutchess County Legislature fails to appropriate the necessary funds to affect payment in
any calendar year beyond the initial year herein, this Agreement shall automatically cease and
terminate on the last day of the year in which funds have been appropriated for said Agreement
and no liability on account thereof shall be incurred by the County beyond the funds available for
the performance of the terms of this Agreement. It is further understood and agreed that neither
this Agreement nor any representation of by any public employee or officer creates any legal or
moral obligation to request, appropriate or make available monies for the purpose of this
Agreement.
14. EXTENSION. This contract may be extended upon such terms and conditions as
may be agreed between the parties.
15. NOTICE. Except as otherwise provided in this Agreement, notice required to be
given pursuant to this Agreement shall be made in writing and addressed to the following or such
other person as the parties may designate:
Dutchess County Office of Computer Information Systems
503 Haight Avenue
Poughkeepsie, NY 12603
REDDOT SOLUTIONS CORP.
One Battery Park Plaza, 24th Floor
New York, NY 10004
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16. NON -WAIVER. Failure of either party to exercise any rights under this
Agreement for a breach thereof shall not be deemed a waiver thereof or a waiver of any
subsequent breach.
17. SEVERABILITY. If any provision of this Agreement shall he held
unenforceable, the rest of the Agreement shall nevertheless remain in full force and effect.
18. CHOICE OF LAW, VENUE. Any dispute arising directly or indirectly out of
this Agreement shall be determined pursuant to the laws of the State of New York. The parties
hereby choose the New York State Supreme Court, Dutchess County as the forum for any such
dispute.
19. NO ARBITRATION. Disputes involving this contract, including the breach or
alleged breach thereof, may not be submitted to binding arbitration but must instead be heard in
accordance with the Paragraph above entitled "Choice of Law, Venue".
20. SERVICE OF PROCESS. In addition to the methods of service allowed by the
New York State Civil Practice Law & Rules ("CPLR"), Contractor hereby consents to service of
process on it by registered or certified mail, return receipt requested or by facsimile (fax)
transmission. Service hereunder shall be complete when deposited in the United States mail,
duly addressed and with proper postage or when the fax has connected. Contractor must
promptly notify the County, in writing, of each and every change of address to which service of
process can be made. Service by the County to the last known address shall be sufficient.
Contractor will have thirty (30) calendar days after service is complete in which to respond.
21. NOTICE OF INTENT TO SUE. (a) Contractor agrees that at least ninety (90)
days prior to commencing suit against the County for any matter arising directly or indirectly out
of this agreement, Contractor shall provide to the County a sworn document listing the time,
place, and manner of any breach of this agreement, together with an itemized list of any damages
to which Contractor believes itself entitled. (b) County shall have the right to conduct a
deposition upon oral questions of an officer, employee or agent of the Contractor, of the
County's choice, as to any matter arising under this agreement within the 90 day period
described above. (c) Strict compliance with this paragraph shall be a condition precedent to
maintenance or institution of any action or proceeding, whether legal or administrative. This
paragraph shall not be construed to toll any applicable statute of limitation. (d) Any action
against the County must be commenced within one year of the event which gives rise to liability.
22. CAPTIONS. The captions are inserted only as a matter of convenience and
reference, and in no way define, limit or describe the scope or intent of this Agreement nor in
any way affect the terms hereof.
23. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original and shall constitute the same Agreement.
24. GENDER. Words of the masculine or feminine gender in this Agreement, unless
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the meaning of the sentence indicates otherwise, shall be deemed to refer to either male or
female persons.
25. SOFTWARE MAINTENANCE. Software maintenance, warranties and other
related issues are covered in the End User License Agreement, which is attached hereto and
made a part hereof as "Exhibit C". Maintenance will commence on or about November 1, 2003.
26. PURCHASE OF REDDOT CPS. Contractor will honor a TWENTY
THOUSAND 00/100 ($20,000.00) DOLLAR purchase price for RedDot CPS product for two
years from the date of the initial purchase of RedDot CMS. Should the County purchase the CPS
product, an additional annual maintenance and support charge of ONE THOUSAND -EIGHT
HUNDRED 00/100 ($1,800.00) DOLLARS will be added to the base amount in the Ongoing
Maintenance and Support Annual Renewal Table as outlined in Exhibit B.
27. ENTIRE AGREEMENT. The terms of this Agreement, including its attachments
and exhibits, represent the final intent of the parties. Any modification, rescission or waiver of
the terms of this Agreement must be in writing and executed and acknowledged by the parties
with the same formalities accorded this basic Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
APPROVED AS TO FORM:
County Attorney's Office
APPROVED AS TO CONTENT:
ACCEPTED: COUNTY OF DUTCHESS
BY:
William R`'Steinhaus
County Executive
REDDOT SOLUTIONS CORP.
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Of . - of Co uter Information sterns
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